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Bar Exam Under Fire

Interesting article the other day in the New York Times. A few states are looking into allowing people to practice law without first passing the bar exam. Wisconsin is the only state that currently does this, but the article explains that Arizona, Iowa, and New Hampshire have at least considered no longer requiring bar passage as a prerequisite for legal practice.

I wish I could give you a strong take on this–either “this is fantastic!” or “this is horrible!”–but I’m afraid I’m somewhere in the middle on this. The purpose of the bar exam is to protect consumers of legal services from . . . well, this is where it gets tricky. The only thing we can say for sure is that we’re protecting them from being represented by attorneys who have not passed their state’s bar exam. The idea, of course, is that in order to pass the bar you have to be reasonably smart and hard-working, and clients surely deserve attorneys who are both of those things. One could argue that people who pass the bar exam also know a lot about the law, but in my experience that kind of stops being true within a few hours of completing the exam.

Some question whether the bar exam really tests how smart people are as opposed to testing their ability to memorize rules, which I agree isn’t all that essential to good lawyering. However, the two bar exams I took, Florida and California, both contained significant writing and analysis components. In California, as I recall, the multiple choice section accounted for just one third of the test (two half-day sessions in a three-day exam).

In the article, Professor Kristin Booth Glen of CUNY criticizes the bar exam as being part of a “guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.” The problem with this argument is that there absolutely should be barriers to prevent the market from being flooded and, more important, to prevent people from going to law school and then not getting a job practicing law. However, those barriers should be erected at the front end, before students accumulate $172k in debt.

In the end, I’m open to bar exam alternatives as long as they ensure, to the extent possible, that those permitted to practice law are reasonably smart and diligent. This is where New Hampshire’s program, which I’ve criticized before, falls short. I would have no problem waiving the bar passage requirement for people who graduate, say, in the top 10% of the class at a top 10 law school. That is a very impressive accomplishment, and one that tells me much more about a person’s fitness to practice law than does passing a single exam, however difficult it may be. Of course, nobody is proposing waiving the bar passage requirement for those people, and any such proposal would immediately be met with complaints of elitism and exclusion. (Never mind that as a client, I would want an elite attorney, and I’d want the legal profession to exclude a lot of people.)